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"Ideology in" or "Cultural Cognition of" Judging: What Difference Does It Make?, 92 Marquette Law Review 413 (2009)


I will offer a critique of the increasingly popular claim that judging is

"ideological" in nature. That claim rests on a growing body of empirical

literature that correlates federal judges' decisions with some measure of

their ideology, typically the political party of the president who appointed

them. I'm going to argue that proponents of this position,

which I'll call the "ideology thesis," haven't adequately specified the

mechanism by which they understand values to be influencing judges.

These proponents have failed, in particular, to distinguish between values

as a self-conscious motive for decisionmaking and values as a subconscious

influence on cognition. Once that distinction is made, it becomes

clear that the evidence cited to support the ideology thesis fits

just as well with another account, which I'll call the "cultural cognition

thesis." Of course, I'll also explain what the difference between ideology

and cultural cognition is, and why it makes a difference, practically,

whether it's ideology or cultural cognition that's affecting judges.

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